86. But the Austinians, having found their sovereign, are apt to regard it as a much more important institution than—if it is to be identified with a determinate person or persons—it really is; they are apt to suppose that the sovereign, with the coercive power (i.e. the power of operating on the fears of the subjects) which it exercises, is the real determinant of the habitual obedience of the people, at any rate of their habitual obedience in respect of those acts and forbearances which are prescribed by law. But, as we have seen, this is not the case. It then needs to be pointed out that if the sovereign power is to be understood in this fuller, less abstract sense, if we mean by it the real determinant of the habitual obedience of the people, we must look for its sources much more widely and deeply than the 'analytical jurists' do; that it can no longer be said to reside in a determinate person or persons, but in that impalpable congeries of the hopes and fears of a people, bound together by common interests and sympathy, which we call the general will.
87. It may be objected that this view of the general will, as that on which habitual obedience to the sovereign really depends, is at best only applicable to 'self-governing' communities, not to those under a despotic sovereign. The answer is that it is applicable in all forms of society where a sovereign in the sense above defined (as a determinate person or persons with whom in the last resort lies the recognised power of imposing laws and enforcing their observance) really exists, but that there are many where there cannot fairly be said to be any such sovereign at all; in other words, that in all organised communities the power which practically commands the habitual obedience of the people in respect of those acts and forbearances which are enjoined by law or authoritative custom, is one dependent on the general will of the community, but this power is often not sovereign in the sense in which the ruler of an independent state is sovereign. It may very well be that there is at the same time another power merely coercive, a power really operating on people simply through their fears, to which obedience is rendered, and which is not in turn representative of a general will; but where this is the case we shall find that such power is only in contact with the people, so to speak, at one or two points; that their actions and forbearances, as determined by law and custom, are in the main independent of it; that it cannot in any proper sense be said to be a sovereign power over them; at any rate, not in the sense in which we speak of King, Lords, and Commons as sovereign in England.
88. Maine has pointed out (Early History of Institutions, Lecture XIII.) that the great despotic empires of ancient times, excluding the Roman, of which more shall be said directly, and modern empires in the East were in the main tax-collecting institutions. They exercise coercive force over their subjects of the most violent kind for certain purposes at certain times, but they do not impose laws as distinct from 'particular and occasional commands' nor do they judicially administer or enforce a customary law. In a certain sense the subjects render them habitual obedience, i.e. they habitually submit when the agents of the empire descend on them for taxes and recruits, but in the general tenor of their lives their actions and forbearances are regulated by authorities with which the empire never interferes,—with which probably it could not interfere without destroying itself. These authorities can scarcely be said to reside in a determinate person or persons at all, but, so far as they do so, they reside mixedly in priests or exponents of customary religion, in heads of families acting within the family, and in some village-council acting beyond the limits of the family. Whether, in such a state of things, we are to consider that there is a sovereign power at all, and, if so, where it is to be considered to reside, are chiefly questions of words. If complete uncontrolledness by a stronger power is essential to sovereignty, the local authorities just spoken of are not sovereign. The conquering despot could descend on them and sweep them away, leaving anarchy in their place, and he does compel them to be put in exercise for a particular purpose, that of raising tribute or sometimes recruits. On the other hand, these authorities, which represent a general will of the communities, form the power which determines such actions and forbearances of the individual as do not proceed from natural inclination. The military ruler, indeed, is sovereign in the sense of possessing irresistible coercive power, but in fact this power is only exercised within narrow limits, and not at all in any legislative or judicial way. If exercised beyond these limits and in conflict with customary law, the result would be a general anarchy. The truest way of expressing the state of the case is to say that, taking the term 'sovereign' in the sense which we naturally associate with it, and in which it is used by modern European writers on sovereignty, there is under such conditions no sovereign, but that the practical regulation of life, except during intervals of military violence and anarchy, rests with authorities representing the general will, though these are to a certain extent interfered with by an alien force.
89. The same account is applicable to most cases of foreign dominion over a people with any organised common life of their own. The foreign power is not sovereign in the sense of being a maker or maintainer of laws. Law-making, under such conditions, there is properly none. The subject people inherits laws, written or unwritten, and maintains them for itself, a certain shelter from violence being afforded by the foreign power. Such, in the main, was the condition of North Italy, for instance, under Austrian domination. Where this is the case, the removal of the coercive power of the foreigner need not involve anarchy, or any violation of established rights (such as Hobbes supposes to follow necessarily from the deposition of an actual sovereign). The social order does not depend on the foreign dominion, and may survive it. The question whether in any particular case it actually can do so must depend on the possibility of preventing further foreign aggression, and on the question whether there is enough national unity in the subject people to prevent them from breaking up into hostile communities when the foreign dominion is removed.
90. It is otherwise where the foreign power is really a law-making and law-maintaining one, and is sovereign in that proper sense, as was the Roman Empire. But just so far as the Roman Empire was of this sovereign, i.e. law-making and law-maintaining, character, it derived its permanence, its hold on the 'habitual obedience' of its subjects, from the support of the general will. As the empire superseded customary or written laws of conquered countries, it conferred rights of Roman citizenship, a much more perfect system of protection in action and acquisition than the conquered people had generally possessed before. Hence, while nothing could be further removed from what Rousseau would have counted liberty than the life of the citizens of the Roman Empire, for they had nothing to do with making the laws which they obeyed, yet probably there was never anv political system more firmly grounded on the good-will of the subjects, none in the maintenance of which the subjects felt a stronger interest. The British power in India exercises a middle function between that of the Roman Empire and that of the mere tax-collecting and recruit-raising empire with which the Roman Empire has just been contrasted. It presents itself to the subject people in the first place as a tax-collector. It leaves the customary law of the people mostly untouched. But if only to a very small extent a law-making power, it is emphatically a law-maintaining one. It regulates the whole judicial administration of the country, but applies its power generally only to enforce the customary law which it finds in existence. For this reason an 'habitual obedience' may fairly be said to be rendered by the Indian people to the English government, in a sense in which it could not be said to be rendered to a merely tax-collecting military power; but the 'habitual obedience' is so rendered only because the English government presents itself to the people, not merely as a tax-collector, but as the maintainer of a customary law, which, on the whole, is the expression of the general will. The same is true in principle of those independent states which are despotically governed, in which, i.e., the ultimate legislative power does not reside, wholly or in part, with an assembly representing the people, or with the people themselves; e.g. Russia. It is not the absolute coercive power of the Czar which determines the habitual obedience of the people. This coercive power, if put to the test as a coercive power, would probably be found very far from absolute. The habitual obedience is determined by a system of law, chiefly customary, which the administration controlled by the Czar enforces against individuals, but which corresponds to the general sense of what is equitable and necessary. If a despotic government comes into anything like habitual conflict with the unwritten law which represents the general will, its dissolution is beginning.
91. The answer, then, to the question whether there is any truth in Rousseau's conception of sovereignty as founded upon a 'volonté générale,' in its application to actual sovereignty, must depend on what we mean by 'sovereign.' The essential thing in political society is a power which guarantees men rights, i.e. a certain freedom of action and acquisition conditionally upon their allowing a like freedom in others. It is but stating the same condition otherwise to speak of a power which guarantees the members of the society these rights, this freedom of action and acquisition, impartially or according to a general will or law. What is the lowest form in which a society is fit to be called political, is hard to say. The political society is more complete as the freedom guaranteed is more complete, both in respect of the persons enjoying it and of the range of possible action and acquisition over which it extends. A family or a nomad horde could not be called a political society, on account of the narrow range of the political freedom which they severally guarantee. The nomad horde might indeed be quite as numerous as a Greek state, or as the sovereign canton of Geneva in Rousseau's time; but in the horde the range within which reciprocal freedom of action and acquisition is guaranteed to the individual is exceedingly small. It is the power of guaranteeing rights, defined as above, which the old writers on sovereignty and civil government supposed to be established by covenant of all with all, translating the common interest which men have in the maintenance of such a power into an imaginary historical act by which they instituted it. It was this power that they had chiefly in view when they spoke of sovereignty.
92. It is to be observed, however, that the power may very well exist and serve its purpose where it is not sovereign in the sense of being exempt from any liability of being interfered with by a stronger coercive power, such as that of a tax-collecting military ruler. The occasional interference of the military ruler is so far a drawback to the efficiency with which freedom of action and acquisition is guaranteed, but does not nullify the general maintenance of rights. On the other hand, when the power by which rights are guaranteed is sovereign (as it is desirable that it should be) in the special sense of being maintained by a person or persons, and wielding coercive force not liable to control by any other human force, it is not this coercive force that is the important thing about it, or that determines the habitual obedience essential to the real maintenance of rights. That which determines this habitual obedience is a power residing in the common will and reason of men, i.e. in the will and reason of men as determined by social relations, as interested in each other, as acting together for common ends. It is a power which this universal rational will exercises over the inclinations of the individual, and which only needs exceptionally to be backed by coercive force.
93. Thus, though it may be misleading to speak of the general will as anywhere either actually or properly sovereign, because the term 'sovereign' is best kept to the ordinary usage in which it signifies a determinate person or persons charged with the supreme coercive function of the state, and the general will does not admit of being vested in a person or persons, yet it is true that the institutions of political society—those by which equal rights are guaranteed to members of such a society—are an expression of, and are maintained by, a general will. The sovereign should be regarded, not in abstraction as the wielder of coercive force, but in connection with the whole complex of institutions of political society. It is as their sustainer, and thus as the agent of the general will, that the sovereign power must be presented to the minds of the people if it is to command habitual loyal obedience; and obedience will scarcely be habitual unless it is loyal, not forced. If once the coercive power, which must always be an incident of sovereignty, becomes the characteristic thing about it in its relation to the people governed, this must indicate one of two things; either that the general interest in the maintenance of equal rights has lost its hold on the people, or that the sovereign no longer adequately fulfils its function of maintaining such rights, and thus has lost the support derived from the general sense of interest in supporting it. It may be doubted whether the former is ever really the case; but whatever explanation of the case may be the true one, it is certain that when the idea of coercive force is that predominantly associated with the law-imposing and law-enforcing power, then either a disruption of the state or a change in the sources of sovereignty must sooner or later take place. In judging, however, whether this is the case, we must not be misled by words. In England, e.g., from the way in which many people speak of 'government,' we might suppose that it was looked on mainly as the wielder of coercive force; but it would be a mistake on that account to suppose that English people commonly regard the laws of the country as so much coercion, instead of as an institution in the maintenance of which they are interested. When they speak disapprovingly of 'government,' they are not thinking of the general system of law, but of a central administrative agency, which they think interferes mischievously with local and customary administration.
94. It is more true, then, to say that law, as the system of rules by which rights are maintained, is the expression of a general will than that the general will is the sovereign. The sovereign, being a person or persons by whom in the last resort laws are imposed and enforced, in the long run and on the whole is an agent of the general will, contributes to realise that will. Particular laws may, no doubt, be imposed and enforced by the sovereign, which conflict with the general will; not in the sense that if all the subject people could be got together to vote upon them, a majority would vote against them,—that might be or might not be,—but in the sense that they tend to thwart those powers of action, acquisition, and self-development on the part of the members of the society, which there is always a general desire to extend (though the desire may not be enlightened as to the best means to the end), and which it is the business of the law to sustain and extend. The extent to which laws of this kind may be intruded into the general 'corpus juris' without social disruption it is impossible to specify. Probably there has never been a civilised state in which they bore more than a very small proportion to the amount of law which there was the strongest general interest in maintaining. But, so far as they go, they always tend to lessen the 'habitual obedience' of the people, and thus to make the sovereign cease to be sovereign. The hope must be that this will result in the transfer of sovereignty to other hands before a social disruption ensues; before the general system of law has been so far perverted as to lose its hold on the people. Of the possibility of a change in sovereignty without any detraction from the law-abiding habits of the people, France has lately given a conspicuous example. Here, however, it must be remembered that a temporary foreign conquest made the transition easier.
95. (2) After what has been said, we need not dwell long on the second question raised [1] concerning Rousseau's theory: Is there any truth in speaking of a sovereignty 'de jure' founded upon the 'volonté générale'? It is a distinction which can only be maintained so long as either 'sovereign' is not used in a determinate sense, or by 'jus' is understood something else than law or right established by law. If by 'sovereign' we understand something short of a person or persons holding the supreme law-making and law-enforcing power, e.g. an English king who is often called sovereign, we might say that sovereignty was exercised 'de facto' but not 'de jure' when the power of such a 'sovereign' was in conflict with, or was not sanctioned by, the law as declared and enforced by the really supreme power. Thus an English king, so far as he affected to control the army or raise money without the co-operation of Parliament, might be said to be sovereign 'de facto' but not 'de jure'; only, however, on the supposition that the supreme law-making and law-enforcing power does not belong to him, and thus that he is called 'sovereign' in other than the strict sense. If he were sovereign in the full sense 'de facto,' he could not fail to be so 'de jure,' i.e. legally. In such a state of things, if the antagonism between king and parliament continued for any length of time, it would have to be admitted that there was no sovereign in the sense of a supreme law-making and law-enforcing power; that sovereignty in this sense was in abeyance, and that anarchy prevailed. Or the same thing might be explained by saying that sovereignty still resided 'de jure' with the king and parliament, though not 'de facto' exercised by them; but if we use such language, we must bear in mind that we are qualifying 'sovereignty' by an epithet which neutralises its meaning as an actually supreme power. If, however, the king succeeded in establishing such a power on a permanent footing, he would have become sovereign in the full sense, and there would be no ground for saying, as before, that he was not sovereign 'de jure'; for the qualifications 'de jure' and 'not de jure,' in that sense in which they might be applied to a power which is not supreme, are equally inapplicable to the power of making and enforcing law which is supreme. The monarch's newly established supremacy may be in conflict with laws that were previously in force, but he has only to abolish those laws in order to render it legal. If, then, it is still to be said to be not 'de jure,' it must be because 'jus' is used for something else than law or right established by law; viz. either for 'natural right' (if we admit that there is such a thing), and 'natural right' as not merely = natural power; or for certain claims which the members of the subject community have come to recognise as inherent in the community and in themselves as members of it, claims regarded as the foundation of law, not as founded upon it, and with which the commands of the sovereign conflict. But even according to this meaning of 'jus,' a sovereign in the strict Austinian sense, that is not so 'de jure,' is in the long run an impossibility. 'Habitual obedience' cannot be secured in the face of such claims.